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September 15, 2004

Numbers, please

The soon-to-be-released DPIC report about the administration of capital punishment and the number of innocent persons released from death row (background here) serves as another example of the potency of data and numbers. And, as I noted here, I believe views on key Blakely issues like severability and retroactivity may be greatly influenced by perceptions or suppositions about the number of cases possibly impacted by different sorts of rulings.

Though lots of sentencing numbers (both state and federal) might be important for examination and analysis, below I have indicated some data about which I am particularly curious in the run-up to Booker and Fanfan. I would be grateful if anyone with answers — or even ideas about how to find answers — would share what they know in the comments or in an e-mail to me.

1. Number of superceding federal indictments obtained since June 24, 2004. Note that this recent article is one of many I have seen suggesting that "Blakely-ized" indictments are common nationwide.

2. Number of federal sentences currently pending, i.e., "not final," (a) in toto, and (b) that have clear Blakely issues. Recall that Justice O'Connor reported in footnote 2 of her Blakely dissent that, on "March 31, 2004, there were 8,320 federal criminal appeals pending in which the defendant's sentence was at issue." But of course, this number represents just pending appeals, and the number of "not final" federal sentences must be larger. However, this number does not distinguish how many of cases have clear Blakely issues. That number might be much smaller.

3. Number of federal sentences "not final" as of June 27, 2000 when Apprendi decided (a) in toto, and (b) that have clear Blakely issues. Again recall that Justice O'Connor reported in footnote 2 of her Blakely dissent that between "June 27, 2000, when Apprendi was decided, and March 31, 2004, there have been 272,191 defendants sentenced in federal court." This number is only a rough (under)approximation of how many federal defendants might have claims if Blakely applies to the federal system and is made retroactive, but it is necessarily an overapproximation of how many past cases might have clear Blakely issues.

Of course, even if (when?) I get this sort of data, I will just want to repeat the data inquiry for each state sentencing system with Blakely issues. In the end, I cannot get over how thoughtful SCOTUS was to give us academics so many valuable research projects.